W.C. No. 4-452-283Industrial Claim Appeals Office.
June 13, 2001
FINAL ORDER
The claimant seeks review of an order by Administrative Law Judge Hopf (ALJ) which denied the claim for temporary disability benefits and determined that certain medical treatment was not rendered by an authorized provider. The claimant argues that, contrary to the ALJ’s finding, he was not “responsible” for termination of his employment with the respondent-employer (Team). The claimant also disputes the ALJ’s finding that treatment he received at St. Joseph’s hospital emergency room was not authorized. We modify the order with regard to temporary disability benefits, and affirm the implicit denial of compensation for the emergency room treatment.
The ALJ’s findings may be summarized as follows. The claimant, a construction laborer, suffered a back injury on February 16, 1997, while lifting boxes of bricks. Nevertheless, the claimant continued working on February 16, and returned to work on February 17 when he carried “heavy containers of grout.” The claimant worked only 8 hours on February 16 and 17, rather than the customary 10 hours, because his back was “sore.” However, the claimant did not report any injury to the employer until Monday, February 21, 2000, because he believed his back would heal “over the weekend.”
On February 18, 2000, the claimant accepted a new job as a framing apprentice with Delta Drywall. The new job was scheduled to commence on Monday, February 21. The ALJ found the claimant went to Team’s office on February 18 to pick up his check, and inferred the claimant told Team’s plant manager that he was quitting.
On February 21 the claimant advised Delta Drywall that he could not begin work because he had injured himself working with Team. The claimant also spoke with Team’s plant manager and reported the injury. The ALJ found the claimant was instructed to seek treatment at the Gates-Exempla Clinic, but instead chose to go to the emergency room at St. Joseph’s hospital. At St. Joseph’s the claimant was treated for a lumbar strain. On February 23, 2000, the claimant reported to Gates-Exempla where he came under the treatment of Dr. Gray. Dr. Gray imposed lifting restrictions of no more than 20 to 30 pounds, and restricted the claimant from stooping, bending and twisting. On April 5, 2000, Dr. Gray placed the claimant at maximum medical improvement (MMI) and released him to return to his regular duties without restriction.
Concerning temporary disability benefits, the ALJ found the claimant was unable to “return to his regular job duties” for more than 3 days, and he was “temporarily disabled from performing those duties.” However, the ALJ found the claimant “left his employment with” Team on February 18 to accept the position with Delta Drywall. Consequently, the ALJ concluded the claimant is not entitled to temporary disability benefits because he was “responsible for the termination” of his employment within the meaning of § 8-42-103(1)(g), C.R.S. 2000. See also § 8-42-105(4), C.R.S. 2000.
Concerning medical benefits, the ALJ found Team selected Gates-Exempla Clinic as the authorized medical provider. Further, the ALJ found that the claimant “chose” to go to St. Joseph’s hospital emergency room, and that this treatment was not “authorized.”
I.
On review, the claimant argues the ALJ erred in denying temporary disability benefits under § 8-42-103(1)(g) and § 8-42-105(4), because he was not “responsible” for his termination of employment with Team. The claimant argues an employee is not “responsible” for termination of employment unless the employee was “terminated for cause.” The claimant also argues he is entitled to benefits because he was physically unable to accept the employment with Delta Drywall. We modify the order concerning temporary disability benefits, but for reasons somewhat different than those asserted by the claimant.
Section 8-42-103(1)(g) and § 8-42-105(4) provide that “where it is determined that a temporarily disabled employee is responsible for termination of employment, the resulting wage loss shall not be attributable to the on the job injury.” (Emphasis added). We have previously held the statutory references to a “temporarily disabled employee” means an employee who is unable to perform his regular work as a result of the injury. Grant v. Speedy G’s Mexican Restaurant, W.C. No. 4-449-941(May 17, 2001). This is true because one of the requirements for establishing entitlement to temporary disability benefits is proof the claimant “left work as a result of the injury,” meaning the claimant was disabled from performing the work he held at the time of the injury. PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995); Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997). Consequently, we have concluded these statutes apply in situations where the claimant is terminated fro modified employment within his restrictions, not where the claimant is terminated from his regular employment that he held at the time of the injury.
Similarly, we have held the statutory references to “employment” mean modified employment within the claimant’s restrictions. In Martinez v. City of Colorado Springs, W.C. No. 4-347-497 (March 7, 2001), the claimant was involved in a compensable truck accident. The claimant was released to modified employment, but when he returned to work the employer discharged him because he was “at fault” for the accident. We reviewed the legislative history of the statutes and concluded their purpose is to deny temporary disability benefits in cases where a temporarily disabled claimant loses post-injury, modified employment for reasons which are the claimant’s fault. Conversely, we held the term “employment” should not be read as referring to loss of the claimant’s regular employment since denial of temporary disability benefits to a claimant who was responsible for causing the injury would be contrary to the no-fault principles underlying the Workers’ Compensation Act. See also McGaffey v. Assured Transportation Delivery Inc., W.C. No. to 4-434-706 (April 27, 2001).
Here, we understand the ALJ to have found the claimant was not disabled from performing his regular employment as a laborer until February 21. Indeed, the ALJ found the claimant performed his regularly assigned duties through February 18, and did not report any injury until February 21. Further, the ALJ found the claimant left his employment with Team because of his desire to a accept the new position with Delta Drywall, not because he was unable to continue working with Team.
Thus, § 8-42-103(1)(g) and § 8-42-105(4) are not applicable. Even if the claimant were found to be “responsible” for terminating his employment with Team, the claimant was not , at the time of termination, a temporarily disabled employee who became separated from modified employment within his restrictions. It follows the claimant is entitled to temporary total disability benefits from February 21, 2001, through April 4, 2001, when he attained MMI. The ALJ’s order shall be modified accordingly.
II.
The claimant also disputes the ALJ’s determination that the treatment he received at St. Joseph’s hospital was not authorized. The claimant asserts that “emergency room care is authorized in virtually all circumstances.” We disagree.
The employer has the right, in the first instance, to designate the authorized treating physician. Section 8-43-404(5)(a), C.R.S. 2000. If the claimant obtains unauthorized care, the employer and insurer are not liable to pay for it. Yeck v. Industrial Claim Appeals Office, 996 P.2d 228
(Colo.App. 1999).
It is true that Colorado recognizes an “emergency” exception to the ordinary rules governing authorization. Thus, in an “emergency situation,” an employee need not give notice to the employer nor await the employer’s choice of a physician before seeking medical treatment. However, when the emergency has ended, the claimant must notify the employer of the need for continuing medical services so that the employer may exercise its right of selection. Sims v. Industrial Claim Appeals Office, 797 P.2d 777 (Colo.App. 1990).
Here, we understand the ALJ to have found as a matter of fact that the claimant was not faced with an “emergency situation” which would excuse his failure to obtain the employer’s approval prior to visiting St. Joseph’s hospital. Indeed, the ALJ found the claimant “chose” to go to St. Joseph’s despite the employer’s insistence that the claimant seek treatment at Gates-Exempla. Further, the claimant testified he preferred to go to St. Joseph’s because it was “close to his house,” not because of any emergency situation. (Tr. p. 17). Thus, the record supports the ALJ’s implicit finding that the claimant’s visit to St. Joseph’s was not the product of a true emergency, and, therefore, the ALJ’s implicit denial of coverage for the treatment provided at St. Joseph’s.
IT IS THEREFORE ORDERED that the ALJ’s order dated September 26, 2000, is modified to provide for an award of temporary total disability benefits from February 21, 2000, through April 4, 2000, inclusive.
IT IS FURTHER ORDERED that the ALJ’s order is otherwise affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Bill Whitacre
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to §8-43-301(10) and § 8-43-307, C.R.S. 2000. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed June 13, 2001 to the following parties:
Alfred Williams, 1580 Vine St., #1, Denver, CO 80206
Team Panels International, Inc., 1600 W. Harvard Ave., Englewood, CO 80110-1112
Renee Halliburton, Insurance Company of the West, 600 S. Cherry St., #527, Denver, CO 80246
Thomas J. Roberts, Esq., 1650 Emerson St., Denver, CO 80218 (For Claimant)
Karen R. Wells, Esq., 3900 E. Mexico, #1000, Denver, CO 80210 (For Respondents)
BY: A. Pendroy